Rayman v. Abbott Ambulance, Inc., ED 105126

• Citation: 546 S.W.3d 12
• Decision Date: 30 January 2018
• Docket Number: No. ED 105126,ED 105126
• Parties: Annie RAYMAN, Appellant, v. ABBOTT AMBULANCE, INC., Respondent.
• Court: Court of Appeal of Missouri (US)

546 S.W.3d 12

Annie RAYMAN, Appellant,

v.ABBOTT AMBULANCE, INC., Respondent.

No. ED 105126

Missouri Court of Appeals, Eastern District, DIVISION ONE.

FILED: January 30, 2018

Motion for Rehearing and/or Transfer to Supreme Court Denied March 22, 2018

Application for Transfer Denied May 22, 2018

Leonard P. Cervantes, St. Louis, MO, for appellant.

Co-counsel Jennifer Suttmoeller, St. Louis, MO, for appellant.

Jeffrey J. Brinker, St. Louis, MO, for respondent.

Co-counsels Andrew Eastman, John Reeves, Gary Paul and Michael Bowgren, St. Louis, MO, for respondent.

KURT S. ODENWALD, Judge

Introduction

Annie Rayman ("Rayman") appeals from the trial court’s grant of summary judgment in favor of Abbott Ambulance, Inc. ("Abbott") on her negligence claim. Rayman sued Abbott for damages that resulted from an automobile collision between Rayman and a third party. The trial court granted Abbott’s motion for summary judgment, finding that Abbott did not owe Rayman a duty of care and that Abbott was not the proximate cause of Rayman’s injuries. In her sole point on appeal, Rayman posits that the trial court erred entering summary judgment for Abbott because there exist genuine issues of material facts regarding whether Abbott owed her a duty of care, if Abbott was the proximate cause of her injuries, and whether the third party properly yielded the right of way to Abbott’s ambulance. Because Rayman cannot establish that Abbott was the proximate cause of her injuries, the trial court did not err in granting summary judgment. Accordingly, we affirm.

Factual and Procedural History

Darla Boester ("Boester") and Cliff Herrin, employees of Abbott, were driving an ambulance eastbound on Interstate 44 in the City of St. Louis. While driving, the ambulance operators received a call to transport a patient from the Center for Advanced Medicine to Barnes-Jewish Hospital. Dispatch coded the call as an emergency and indicated that the patient was experiencing uncontrolled bleeding. In response to the call, the ambulance operators activated the ambulance’s emergency sirens and lights and exited Interstate 44 at South Kingshighway Boulevard.

Elizabeth Downey ("Downey"), driving a van, was stopping at a red light that controlled the Interstate 44 exit ramp at South Kingshighway Boulevard. Downey noticed the activated emergency sirens from the ambulance approaching behind her. Downey explained that she heard a continuous siren described as "a wail" and then saw the emergency lights and heard a horn-like sound described as "a yelp." As the ambulance gained on Downey’s position, she maneuvered her van into the southbound lane of South Kingshighway Boulevard to allow the emergency vehicle to proceed. Downey maintained that the ambulance’s appearance forced her to move her van into the intersection.

Meanwhile, Lisa Gans ("Gans") was driving her vehicle in the southbound lane of South Kingshighway Boulevard. Gans also heard the emergency sirens. In response, Gans stopped her vehicle. After becoming stationary, Gans saw the ambulance, with its lights activated, positioned on the exit ramp behind Downey’s van. Gans claimed that she could clearly hear and see the ambulance’s sirens and lights from her position. Gans witnessed Downey’s van enter the intersection. Gans then observed a vehicle, driven by Rayman and also traveling southbound on South Kingshighway Boulevard, approach, reach, and travel beyond Gan’s location. Rayman’s vehicle proceeded past Gans’s stopped vehicle and entered directly into the intersection, colliding with Downey’s van. According to Rayman, she had a green light when she reached the intersection. Rayman did not remember or know whether the ambulance operators had activated the ambulance’s sirens or lights before the collision.¹ No vehicle made contact with the ambulance.

The ambulance continued to the Center for Advanced Medicine to pick up the patient and transport her to Barnes-Jewish Hospital. After observing the patient, Boester believed that the patient’s condition was not life threatening. In transporting the patient to Barnes-Jewish Hospital, the ambulance operators did not activate the ambulance’s emergency sirens or lights. Although dispatch initially informed the ambulance operators that it was an emergency, the transport was billed "as a non-emergency trip."

Rayman sued Abbott, claiming that its negligence caused her to suffer permanent injuries in the collision.² Specifically, Rayman alleged that the ambulance approached the intersection in a negligent manner and with excessive speed, causing Rayman’s vehicle to collide with Downey’s van. Abbott moved for summary judgment, arguing that it did not owe Rayman any duty under the circumstances and that it was not the proximate cause of her injuries. Abbott contended that Rayman failed to comply with Section 304.022.1,³ which required motorists to yield the right of way to an emergency vehicle. Abbott posited that Rayman’s failure to comply with the law was not foreseeable and constituted the independent, intervening cause of her injuries.

The trial court entered judgment in favor Abbott. The trial court found that the only evidence of Abbott forcing Downey’s van into the intersection was "evidence that the ambulance engaged its siren, lights and horn and that ... Downey responded to these signals by yielding the right of way and moving to the right as required by Section 304.022.1 RSMo." The trial court determined that Abbott had established, on the undisputed material facts, that Rayman would not be able to show the existence of a duty or that Abbott’s conduct proximately caused her injuries. This appeal follows.

Standard of Review

We review a grant of summary judgment de novo. Arbors at Sugar Creek Homeowners Ass'n v. Jefferson Bank & Trust Co., 464 S.W.3d 177, 183 (Mo. banc 2015) ; ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). In reviewing the trial court’s summary-judgment ruling, we apply "the same criteria as the trial court in determining whether summary judgment was proper." Cent. Trust & Inv. Co. v. Signalpoint Asset Mgmt., LLC, 422 S.W.3d 312, 319 (Mo. banc 2014) (quoting Goerlitz v. City of Maryville, 333 S.W.3d 450, 452 (Mo. banc 2011) ). "Summary judgment is appropriate when ‘there is no genuine dispute about material facts and, under the undisputed facts, the moving party is entitled to judgment as a matter of law.’ " Bishop & Assocs., LLC v. Ameren Corp., 520 S.W.3d 463, 468 (Mo. banc 2017) (quoting Parr v. Breeden, 489 S.W.3d 774, 778 (Mo. banc 2016) ). A defendant shows a right to summary judgment when he or she establishes:

(1) facts that negate any one of the claimant’s elements facts, (2) that the non-movant, after an adequate period of discovery, has not been able to produce, and will not be able to produce, evidence sufficient to allow the trier of fact to find the existence of any one of the claimant’s elements, or (3) that there is no genuine dispute as to the existence of each of the facts necessary to support the movant’s properly-pleaded affirmative defense.

ITT Commercial Fin. Corp., 854 S.W.2d at 381. Each of the three espoused methods individually demonstrates the right to judgment as a matter of law. Cent. Trust & Inv. Co., 422 S.W.3d at 320 (quoting Goerlitz, 333 S.W.3d at 453 ).

"A genuine dispute exists when ‘the issue, or dispute, [is] a real and substantial one—one consisting not merely of conjecture, theory and possibilities.’ " Brentwood Glass Co. v. Pal’s Glass Serv., Inc., 499 S.W.3d 296, 300 (Mo. banc 2016) (quoting ITT Commercial Fin. Corp., 854 S.W.2d at 378 ). "A material fact in the context of summary judgment is one from which the right to judgment flows." Cent. Trust & Inv. Co., 422 S.W.3d at 319 (quoting Goerlitz, 333 S.W.3d at 453 ). "Facts set forth by affidavit or otherwise in support of a party’s motion are taken as true unless contradicted by the non-moving party’s response to the summary judgment motion." DeCormier v. Harley-Davidson Motor Co. Grp., 446 S.W.3d 668, 671 (Mo. banc 2014) (quoting ITT Commercial Fin. Corp., 854 S.W.2d at 376 ). Finally, we review the record in the light most favorable to the party against whom judgment was entered. ITT Commercial Fin. Corp., 854 S.W.2d at 376. But, the trial court’s grant of summary judgment "may be affirmed on any appropriate theory supported by the record." Arbors at Sugar Creek Homeowners Ass'n, 464 S.W.3d at 183.

Point on Appeal

Rayman presents one point on appeal. In her point, Rayman argues that the trial court erred in granting summary judgment because there exist genuine issues of material fact regarding whether Abbott owed her a duty of care, if Abbott was the proximate cause of her injuries, and whether Downey complied with Section 304.022.1 by driving into the intersection.

Discussion

In her sole point on appeal, Rayman argues that genuine factual disputes precluded the trial court from entering summary judgment. Specifically, Rayman divides her point on appeal into three substantive factual disputes: Part One regards the duty of care Abbott owed to Rayman; Part Two relates to whether Abbott was the proximate cause of Rayman’s injuries; and Part Three pertains to whether Downey complied with Section 304.022.1. Before reviewing the merits of Rayman’s appeal, we first must address the deficiencies contained within Rayman’s appellate brief.

I. Abbott’s Motion to Strike Rayman’s Appellate Brief

Before the submission of the case, Abbott moved to strike Rayman’s appellate brief, asserting that the brief contained references to materials that were never filed with the trial court and thus outside the summary-judgment record. Rayman’s appellate brief contains numerous references to, and arguments based on, a supplemental legal file containing the full depositions of Downey and Boester. However, the full depositions of Boester and Downey were not submitted to the trial court in their entirety and were not a part of the summary-judgment...